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Wheeler v. Wheeler3/11/2005
nal decree dealing with visitation states:
{ } "Based upon the evidence and testimony presented to the Court, the Court FINDS that the [Appellant] was injured in an automobile accident on March 23, 1999 and as a result of said accident suffered a cracked cervical vertebrae which required surgical fusions as well as closed head injury . As a result of the closed head injury [Appellant] has suffered a personality change and is currently mentally unstable and has violent tendencies.
{ } "Therefore accordingly, it is ORDERED, ADJUDGED, and DECREED that the [Appellant] shall not have Court Ordered visitation and companionship time with the parties' minor children at this time due to his mental instability and violent tendencies. The Court shall retain jurisdiction over this provision and this provision shall be subject to Court review upon the petition of either party to this Court."
{ } Unlike the findings for imputation of income previously discussed, here there is a statutory directive that the court must find and make manifest on its journal a determination that parental visitation is not in the children's best interest. Absent an express finding, the court must fashion a visitation order for the non-residential parent.
{ } In this matter, the court's entry stops short of journalizing a finding that the child visitation by appellant is not in the children's best interest. Accordingly, appellant's fourth assignment of error is well-taken. We vacate the court's visitation order and remand the matter to the trial court to either enter the requisite finding or fashion a visitation order.
{ } On consideration whereof, the judgment of the Ottawa Court of Common Pleas is affirmed, in part, and vacated, in part. This matter is remanded to said court for further proceedings in conformity with this decision and judgment entry. Costs to appellee, pursuant to App.R. 24.
JUDGMENT AFFIRMED, IN PART, AND VACATED, IN PART.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
Peter M. Handwork, J. JUDGE
Mark L. Pietrykowski, J., Arlene Singer, P.J. JUDGE CONCUR.
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